Data laws threaten legal privilege


A Bill to strengthen data protection could strip back the right to confidential legal advice, the Bar Council warned.

Bar Chair Andrew Walker QC said the Data Protection Bill, going through Parliament, will give the Information Commissioner’s Office (ICO) ‘sweeping powers to access legally privileged material’.

He said: ‘The irony is that these powers are designed to give citizens more control and protection over how their data are used, but the effect will be to allow access to their legally privileged communications without their consent.’

Walker warned that the bill will undermine the right to confidential legal advice, protected by the common law and Articles 6 and 8 of the European Convention on Human Rights.

He said that imposing a duty on lawyers to respond to ICO demands for privileged information would place them in the invidious position of being unable to reassure clients they will be able to protect the confidentiality of information imparted to them.

The Bar Council also warned that the bill could let the Home Office ‘off the hook’ for making incorrect decisions that see people wrongly deported or detained.

It said the bill gives the Home Office a wide-ranging exemption from its obligation to tell people what data it has on them.

Walker said: ‘Making a Subject Access Request is often the only way for people who are in the immigration system to find out crucial information relevant to their immigration status, and even to find out the very basis for adverse decisions that the Home Office has already made about them.’

Blocking access, he said, will insulate the Home Office from challenges to its ‘notoriously poor’ decision-making.

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